Stanford Law School - Robert Crown Law Library

Filed 8/2/10

IN THE SUPREME COURT OF CALIFORNIA

RANDAL D. HAWORTH et al.,
Petitioners,
S165906
v.
Ct.App. 2/5
THE SUPERIOR COURT
No. B204354
OF LOS ANGELES COUNTY,
Los Angeles County
Respondent;
Super. Ct. No. SC082441
SUSAN AMY OSSAKOW,
Real Party in Interest.

The superior court vacated an arbitration award in a case involving the
claim of a female patient that her physician was negligent in performing plastic
surgery on her lip. The basis of the court‟s action was that the neutral arbitrator
had failed to disclose a matter “that could cause a person aware of the facts to
reasonably entertain a doubt that the . . . neutral arbitrator would be able to be
impartial.” (Code Civ. Proc., § 1281.9, subd. (a).)1 The question before us is
whether the neutral arbitrator, a former judge of the superior court, was required to
disclose to the parties the circumstance that, 10 years earlier, he received a public

1
All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.
1

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censure based upon his conduct toward and statements to court employees, which
together created “an overall courtroom environment where discussion of sex and
improper ethnic and racial comments were customary.” (In re Gordon (1996) 13
Cal.4th 472, 474.) We conclude the arbitrator was not required to disclose this
public censure, and therefore reverse the decision rendered by the Court of
Appeal.
I.
In 2003, petitioner Randal Haworth (Haworth), a medical doctor,
performed cosmetic lip surgery upon real party in interest Susan Ossakow
(Ossakow). Subsequently, Ossakow filed an action against Haworth alleging
battery and medical malpractice. Based upon an arbitration agreement, the parties
stipulated to binding arbitration of Ossakow‟s claims. That agreement provided
for a panel of arbitrators composed of one arbitrator selected by each party and a
neutral arbitrator jointly chosen in turn by those two arbitrators.
Both parties agreed to the appointment of retired Los Angeles County
Superior Court Judge Norman Gordon as the neutral arbitrator. In his disclosure
statement, required by section 1281.9, Judge Gordon stated that he had been
involved in legal proceedings with other members of defense counsel‟s firm, but
had no other information to report.
At the arbitration hearing, Ossakow, who previously had undergone several
other cosmetic surgeries performed by various physicians, contended that she had
not consented to the particular surgical procedure employed by Haworth, that the
use of that procedure fell below the standard of care, and that the procedure had
caused her numerous problems, including stiffness and numbness in her lips and
an asymmetrical smile. The panel, in a split decision authored by Judge Gordon,
issued its award in favor of Haworth. In written findings, the arbitrators
concluded that Ossakow had not established lack of consent by a preponderance of
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the evidence, noting that the testimony of the two parties was in conflict
concerning whether Ossakow had been informed regarding the surgical procedure
to be employed. The arbitrators also concluded that Haworth‟s use of the selected
surgical procedure did not fall below the standard of care, noting that the medical
experts of the two parties disagreed on the standard of care, that even Ossakow‟s
expert was equivocal on the question of causation, and that the testimony of
Haworth‟s expert regarding the standard of care and causation was more
compelling.
Two months later, in April of 2007, Ossakow learned that in 1996, Judge
Gordon, who was appointed to the trial bench in 1983, had been publicly censured
by this court for engaging in “ „conduct prejudicial to the administration of justice
that brings the judicial office into disrepute.‟ ” (In re Gordon, supra, 13 Cal.4th
472, quoting Cal. Const., art. VI, § 18, subd. (c)(2).) This court had adopted the
findings of the Commission on Judicial Performance “that between April of 1990
and October 27, 1992, Judge Gordon on several occasions made sexually
suggestive remarks to and asked sexually explicit questions of female staff
members; referred to a staff member using crude and demeaning names and
descriptions and an ethnic slur; referred to a fellow jurist‟s physical attributes in a
demeaning manner; and mailed a sexually suggestive postcard to a staff member
addressed to her at the courthouse. None of the conduct occurred while court was
in session or while the judge was on the bench conducting the business of the
court. [¶] . . . While the actions were taken in an ostensibly joking manner and
there was no evidence of intent to cause embarrassment or injury, or to coerce, to
vent anger, or to inflict shame, the result was an overall courtroom environment
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where discussion of sex and improper ethnic and racial comments were
customary.” (Id., at pp. 473-474.)2
Ossakow filed a petition in the superior court seeking to vacate the
arbitration award on the ground, among others, that Judge Gordon had failed to
disclose this public censure. That court vacated the award, concluding “a
reasonable person would question whether he could be impartial in this case.”
Haworth filed a petition for writ of mandamus to reinstate the award,3 which the

2
The only evidence of the conduct underlying Judge Gordon‟s public
censure that was admitted in the superior court in the present proceedings is the
text of this court‟s decision in In re Gordon, supra, 13 Cal.4th 472.
The dissenting opinion relies upon additional factual material not discussed
in our opinion. (Dis. opn. of Werdegar, J. at pp. 3-4.) Justice Werdegar would
take judicial notice of the record in the censure case, including the factual findings
of the Commission on Judicial Performance. (Dis. opn. at p. 3, fn. 1.) In contrast
to the cases cited in the dissenting opinion, however, in the present case the parties
have not asked us to take judicial notice of these records. Ossakow did not submit
these records to the trial court in connection with her petition to vacate the
arbitration award, and the trial court made its ruling based upon the facts set forth
in our opinion. “Reviewing courts generally do not take judicial notice of
evidence not presented to the trial court” absent exceptional circumstances. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) “It is an
elementary rule of appellate procedure that, when reviewing the correctness of a
trial court‟s judgment, an appellate court will consider only matters which were
part of the record at the time the judgment was entered. [Citation.] This rule
preserves an orderly system of litigation by preventing litigants from
circumventing the normal sequence of litigation.” (Reserve Insurance Co. v.
Pisciotta (1982) 30 Cal.3d 800, 813.) No exceptional circumstances appear that
would justify deviating from this general rule in the present case, particularly in
the absence of a request for judicial notice by either of the parties. (See, e.g.
Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [declining to take judicial
notice of records of an arbitration proceeding because “the State Bar puts forth no
reason for its failure to request the trial court and Court of Appeal to take judicial
notice”].) Moreover, to take judicial notice of additional records at this stage of
the litigation would deprive the parties of any opportunity to respond, either by
offering additional evidence or by tailoring their arguments to address these new
(Footnote continued on next page)
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Court of Appeal denied in a summary order. This court granted review and
transferred the matter back to the appellate court with directions to issue an
alternative writ of mandate.
After issuing the writ, the Court of Appeal filed an opinion denying the
petition. In its opinion, the appellate court concluded that there was a conflict in
the law concerning the correct standard of review, but that there was no need to
resolve the conflict, because its decision would be the same whether the superior
court‟s order vacating the award was reviewed de novo or under a substantial
evidence standard. The appellate court rejected Haworth‟s argument that no
disclosure was required because the censure was a matter of public record. It
framed the question as “whether an „ “average person on the street” ‟ aware of the
facts would harbor doubts as to the arbitrator‟s impartiality.” (Quoting United
Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104
(United Farm Workers).) The Court of Appeal concluded that because Judge
Gordon was publicly censured in part for “disparaging female associates based on
their physical attributes,” “a person aware of Judge Gordon‟s censure might
reasonably entertain a doubt as to his ability to be impartial in a case involving a
woman‟s cosmetic surgery.”

(Footnote continued from previous page)
facts. Therefore, we rely solely upon the evidence that was presented to and
considered by the trial court.
3
An order vacating an arbitration award is appealable only if it does not
order a rehearing in arbitration. (§ 1294, subd. (c).) The superior court‟s order in
the present case directed that a new arbitration proceeding be conducted, and thus
was not appealable.
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II.
The California Arbitration Act (§ 1280 et seq.) “represents a comprehensive
statutory scheme regulating private arbitration in this state.” (Moncharsh v. Heily
& Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) The statutory scheme reflects a
“strong public policy in favor of arbitration as a speedy and relatively inexpensive
means of dispute resolution.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh,
Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322.) “[I]t is the general rule that
parties to a private arbitration impliedly agree that the arbitrator‟s decision will be
both binding and final.” (Moncharsh, supra, 3 Cal.4th at p. 9.)
Generally, in the absence of a specific agreement by the parties to the
contrary, a court may not review the merits of an arbitration award. (Cable
Connections, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1344-1345.)
Although the parties to an arbitration agreement accept some risk of an erroneous
decision by the arbitrator, “the Legislature has reduced the risk to the parties of
such a decision by providing for judicial review in circumstances involving
serious problems with the award itself, or with the fairness of the arbitration
process.” (Moncharsh, supra, 3 Cal.4th at p. 12; see §§ 1286.2 [grounds for
vacation of award], 1282.6 [grounds for correction of award].)
The statutory scheme, in seeking to ensure that a neutral arbitrator4 serves
as an impartial decision maker, requires the arbitrator to disclose to the parties any
grounds for disqualification. Within 10 days of receiving notice of his or her
nomination to serve as a neutral arbitrator, the proposed arbitrator is required,

4
“ „Neutral arbitrator‟ means an arbitrator who is (1) selected jointly by the
parties or by the arbitrators selected by the parties or (2) appointed by the court
when the parties or the arbitrators selected by the parties fail to select an arbitrator
who was to be selected jointly by them.” (§ 1280, subd. (d).)
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generally, to “disclose all matters that could cause a person aware of the facts to
reasonably entertain a doubt that the proposed neutral arbitrator would be able to
be impartial.” (§ 1281.9, subd. (a).) Based upon these disclosures, the parties are
afforded an opportunity to disqualify the proposed neutral arbitrator. (§ 1281.91,
subds. (b), (d).) If an arbitrator “failed to disclose within the time required for
disclosure a ground for disqualification of which the arbitrator was then aware,”
the trial court must vacate the arbitration award. (§ 1286.2, subd. (a)(6)(A).)
The applicable statute and standards enumerate specific matters that must
be disclosed. The arbitrator must disclose specified relationships between the
arbitrator and the parties to the arbitration, including involvement in prior
arbitrations, an attorney-client relationship with any attorney involved in the
arbitration, and any significant personal or professional relationship with a party or
an attorney involved in the arbitration. (§ 1281.9, subd. (a)(3)-(6).) The
arbitrator also must disclose “any ground specified in Section 170.1 for
disqualification of a judge,” as well as “matters required to be disclosed by the
ethics standards for neutral arbitrators adopted by the Judicial Council.”
(§ 1281.9, subd. (a)(1), (2); see Cal. Ethics Stds. for Neutral Arbitrators in
Contractual Arb. (Ethics Standards).) The Ethics Standards require the disclosure
of “specific interests, relationships, or affiliations” and other “common matters
that could cause a person aware of the facts to reasonably entertain a doubt that the
arbitrator would be able to be impartial.” (Ethics Stds., com. to std. 7.) Specific
matters that must be disclosed include, for example, the arbitrator‟s financial
interest in a party or the subject of the arbitration, the arbitrator‟s knowledge of
disputed facts relevant to the arbitration, and the arbitrator‟s “membership in any
organization that practices invidious discrimination on the basis of race, sex,
religion, national origin, or sexual orientation.” (Ethics Stds., std. 7(d)(13); id, std.
7(d)(9), (10), & (12).)
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Neither the statute nor the Ethics Standards require that a former judge or
an attorney serving as an arbitrator disclose that he or she was the subject of any
form of professional discipline. At issue here is the general requirement that the
arbitrator disclose any matter that reasonably could create the appearance of
partiality.
A.
In the Court of Appeal, both parties suggested that the superior court‟s
order vacating the arbitration award, based upon Judge Gordon‟s failure to
disclose the public censure, should be reviewed under a de novo standard because
the facts were not in dispute. The Court of Appeal‟s opinion stated that although
some cases have applied this standard to such review when the facts were not in
dispute,5 the weight of authority supports application of a substantial-evidence
standard even when the facts are undisputed, treating the question of whether the
circumstances of the case require disclosure as a factual determination for the
superior court.6 As noted above, the Court of Appeal declined to resolve this

5
The Court of Appeal cited two cases that determined a de novo standard of
review applies when the facts are not in dispute, Casden Park La Brea Retail LLC
v. Ross Dress For Less, Inc. (2008) 162 Cal.App.4th 468, 476, footnote 7, and
Betz v. Pankow (1995) 31 Cal.App.4th 1503, 1508.
6
The Court of Appeal cited the following cases, which apply a more
deferential standard of review: Luce, Forward, Hamilton & Scripps, LLP v. Koch
(2008) 162 Cal.App.4th 720, 734 (whether the arbitrator had a duty to disclose
information is a question of fact subject to deferential review); Guseinov v. Burns
(2006) 145 Cal.App.4th 944, 957 (concluding “substantial evidence supported the
trial court‟s conclusion that disclosure was not required”); Reed v. Mutual Service
Corp. (2003) 106 Cal.App.4th 1359, 1365 (“whether the arbitrators had a duty to
disclose information . . . which might indicate bias, is a question of fact. Our
review as to that issue is deferential”); Michael v. Aetna Life & Casualty Ins. Co.
(2001) 88 Cal.App.4th 925, 931, 933 (whether a particular relationship requires
disclosure is a question of fact for the trial court, whose decision is reviewed for
substantial evidence). (See also O’Flaherty v. Belgum (2004) 115 Cal.App.4th
(Footnote continued on next page)
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question, concluding that its decision would be the same under either standard.
We asked the parties to brief the issue.
Haworth contends that there is no dispute concerning the facts, that the
superior court‟s decision that disclosure was required poses a mixed question of
fact and law, and that mixed questions should be reviewed de novo. Ossakow
contends that the facts are in dispute and that, in any event, the abuse-of-discretion
standard should apply; her position is that the superior court‟s decision should be
upheld if its factual findings are supported by substantial evidence and its
application of the law to the facts is not arbitrary or capricious.7
In the context of a claim that an arbitrator exceeded his or her powers, we
have stated that the superior court‟s decision is subject to de novo review.
(Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.)
We have not addressed the standard applicable to review of the superior court‟s
decision when the award has been challenged in that court on the ground that the
arbitrator failed to disclose circumstances creating an appearance of partiality.8

(Footnote continued from previous page)
1044, 1105-1106 [dis. opn. of Grignon, J., concluding that substantial evidence
supported the trial court‟s finding that no person apprised of the facts could
reasonably conclude the arbitrator could not be impartial].)
7
The only case cited by Ossakow that applied an abuse-of-discretion
standard in reviewing a trial court‟s vacation of an arbitration award, based upon
an arbitrator‟s failure to disclose, is Kaiser Foundation Hospitals, Inc. v. Superior
Court (1993)19 Cal.App.4th 513. The appellate court in that matter did not
analyze the issue of which standard of review was applicable; it merely stated in a
summary manner that the superior court‟s decision “did not constitute an abuse of
discretion.” (Id., at p. 518.)
8
Because the rule for disclosure by a neutral arbitrator under section 1281.9,
subdivision (a) is the same as the rule for disqualification of a judge under section
170.1, subdivision (a)(6)(A)(iii), case law applicable to judicial disqualification is
potentially relevant to the present case. Our decisions, however, have not fully
(Footnote continued on next page)
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For the reasons discussed below, we conclude that the superior court‟s order
should be reviewed de novo.
As a threshold matter, the material facts are not in dispute. The wording of
Judge Gordon‟s public censure and the underlying information Ossakow contends
should have been disclosed by him are set out in this court‟s earlier opinion and
are not in dispute. (In re Gordon, supra, 13 Cal.4th 472.) Ossakow attempts to
support her assertion that factual disputes exist in the present case by citing her
declaration, filed in the superior court, in which she stated she would not have
agreed to have Judge Gordon serve as an arbitrator had she known he had been
publicly censured for demeaning and degrading treatment of women. Haworth
does not dispute the truth of Ossakow‟s statement but, in any event, the statement
is not material. In the event Ossakow establishes that Judge Gordon failed to

(Footnote continued from previous page)
resolved, in the analogous context of judicial recusal, the issue of which standard
of review applies to a determination involving the appearance of partiality. We
stated in People v. Alvarez (1996) 14 Cal.4th 155, 237, that generally, “an
appellate court reviews a trial court‟s ruling on a recusal motion for abuse of
discretion.” Alvarez, however, does not appear to have been cited by this court or
the Courts of Appeal on this point. An earlier case, People v. Brown (1993) 6
Cal.4th 322, 336-337, has been cited for the proposition that a trial court‟s ruling
on a motion to disqualify a judge is reviewed de novo. (See Flier v. Superior
Court (1994) 23 Cal.App.4th 165, 171.) Although our opinion in People v. Brown
does not express deference to the trial court‟s ruling, it does not explicitly set forth
any standard of review. Some appellate courts have stated, with minimal
analysis, that the question of whether a judge should have been disqualified
because of an appearance of partiality is a question of law, reviewable de novo,
where the facts are not in dispute. (See, e.g., Briggs v. Superior Court (2001) 87
Cal.App.4th 312, 319 [“On undisputed facts this is a question of law for
independent appellate review”]; Sincavage v. Superior Court (1996) 42
Cal.App.4th 224, 230 [“Where, as here, the underlying events are not in dispute,
disqualification on this ground becomes a question of law which this court may
determine”].)
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make a required disclosure, she is entitled to vacation of the arbitration award
without any showing she was prejudiced by the nondisclosure. (See § 1286.2,
subd. (a)(6)(A).)
Ossakow also cites, as an assertedly disputed fact, the superior court‟s
conclusion that a statement in the arbitration award constituted “at least some
evidence” that the award was influenced by gender bias. The statement to which
the superior court referred was the following: “One thing probably everyone can
agree upon, after five facial surgeries, she could have done without the sixth one.”
The court referred to this statement as “gratuitous” and cited it in support of its
ruling that, in proceeding with a new arbitration, the parties should select three
new arbitrators, and not merely a replacement for Judge Gordon.9 Although
Haworth disputes whether this statement by Judge Gordon constitutes evidence of
bias, that is not a material issue in this case. In order to prevail under section
1286.2, subdivision (a)(6)(A), Ossakow is not required to prove that Judge Gordon
actually was influenced by bias. Instead, the sole issue is whether, at the time he
was required to make any disclosures — that is, within 10 days of his nomination
to serve as a neutral arbitrator — Judge Gordon should have disclosed information
regarding the public censure. His later statement was immaterial to the question of
whether knowledge of the public censure could cause a person to reasonably
entertain a doubt whether Judge Gordon could be impartial.
In Crocker National Bank v. City and County of San Francisco (1989) 49
Cal.3d 881 (Crocker), we set forth the general principles governing the selection
of a standard of appellate review. “Questions of fact concern the establishment of

9
The superior court did not find actual bias justifying vacation of the award,
and Ossakow does not take the position that the trial court‟s order should be
upheld because Judge Gordon was actually biased against her.
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historical or physical facts; their resolution is reviewed under the substantial-
evidence test. Questions of law relate to the selection of a rule; their resolution is
reviewed independently. Mixed questions of law and fact concern the application
of the rule to the facts and the consequent determination whether the rule is
satisfied. If the pertinent inquiry requires application of experience with human
affairs, the question is predominantly factual and its determination is reviewed
under the substantial-evidence test. If, by contrast, the inquiry requires a critical
consideration, in a factual context, of legal principles and their underlying values,
the question is predominantly legal and its determination is reviewed
independently. [Citation.]” (Id., at p. 888.)
Here, the facts are not in dispute, nor is the applicable rule of law. The
question of whether Judge Gordon was required to disclose the public censure
involves the application of the rule to the facts, making it a mixed question of law
and fact. Selection of the appropriate standard of review for mixed questions is
influenced by concerns of judicial administration — “ „efficiency, accuracy, and
precedential weight.‟ ” (People v. Louis (1986) 42 Cal.3d 969, 986-987.) If those
concerns “ „make it more appropriate for a [trial] judge to determine whether the
established facts fall within the relevant legal definition, we should subject [the
trial judge‟s] determination to deferential . . . review. If, on the other hand, the
concerns of judicial administration favor the appellate court, we should subject the
[trial] judge‟s finding to de novo review.‟ ” (Id., at p. 987, quoting United States
v. McConney (9th Cir. 1984) 728 F.2d 1195, 1202.) Deference is given to the
factual findings of trial courts because those courts generally are in a better
position to evaluate and weigh the evidence. (People v. Louis, supra, 42 Cal.3d at
p. 986.) The Courts of Appeal, on the other hand, are in a better position to
resolve legal issues, because “ „appellate judges are freer to concentrate on legal
questions‟ ” and the judgment of three or more judges is brought to bear in every
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case. (Id., quoting United States v. McConney, supra, 728 F.2d at p. 1201.)
Furthermore, factual determinations generally are of concern only to the litigants,
whereas appellate decisions provide controlling precedent for future cases.
“ „From the standpoint of sound judicial administration, therefore, it makes sense
to concentrate appellate resources on ensuring the correctness of determinations of
law.‟ ” (Ibid.)
We previously have observed that in most instances, mixed questions of
fact and law are reviewed de novo — with some exceptions, such as when the
applicable legal standard provides for a “ „strictly factual test, such as state of
mind.‟ ” (People v. Louis, supra, 42 Cal.3d at p. 987, fn. 4, quoting United States
v. McConney, supra, 728 F.2d at p. 1203.) “ „This is so because usually the
application of law to fact will require the consideration of legal concepts and
involve the exercise of judgment about the values underlying legal principles.‟ ”
(People v. Louis, supra, 42 Cal.3d at p. 987, quoting United States v. McConney,
supra, 728 F.2d at p. 1202.)
In Crocker, we held that the issue of whether an individual computer
component represents a “fixture” for property-tax purposes must be reviewed
independently on appeal. We explained that although our inquiry involved factual
determinations, the question remained predominantly legal. (Crocker, supra 49
Cal.3d at pp. 884, 888.) “[T]he pertinent inquiry bears on the various policy
considerations implicated in the solution of the problem of taxability, and
therefore requires a critical consideration, in a factual context, of legal principles
and their underlying values.” (Id., at p. 888.) Moreover, we concluded that
independent review fosters appropriate uniformity in the application of tax laws.
(Id., at pp. 888-889.)
Whether Judge Gordon was required to disclose the public censure is a
mixed question of fact and law that should be reviewed de novo. The applicable
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rule provides an objective test by focusing on a hypothetical reasonable person‟s
perception of bias. The question is not whether Judge Gordon actually was biased
or even whether he was likely to be impartial; those questions involve a subjective
test that appropriately could be characterized as primarily factual. The question
here is how an objective, reasonable person would view Judge Gordon‟s ability to
be impartial. (See, e.g, Ornelas v. United States (1996) 517 U.S. 690, 697 [trial
court‟s determinations of reasonable suspicion and probable cause in the context
of the Fourth Amendment to the United States Constitution, based on the
viewpoint of a reasonable police officer, are reviewed de novo]; Crocker, supra,
49 Cal.3d at pp. 887-888 [classification, for purposes of property tax, of an item of
equipment as a fixture depends upon whether a reasonable person would consider
the item to constitute a permanent part of the building — an issue to be reviewed
de novo].)
The concerns of judicial administration noted in People v. Louis, supra, 42
Cal.3d at page 986 (efficiency, accuracy, and precedential weight), militate in
favor of de novo review. In ruling on a petition to vacate an arbitration award, the
superior court is itself reviewing a decision by the arbitrator not to disclose, based
upon the facts known to the arbitrator at the time required for disclosure. That
court is in no better position than an appellate court to resolve the question of
whether a reasonable person would doubt the arbitrator‟s ability to be impartial.
Additionally, in the appellate court, three judges bring their expertise to bear on
the issue, increasing the likelihood of accurate decisions.
Furthermore, although the application of the appearance-of-partiality test
does depend upon the facts and circumstances of each case, de novo review —
through the establishment of appellate precedent — will promote consistency in
the interpretation and application of the disclosure requirement. The United States
Supreme Court has held that a trial court‟s application of the law to the facts in
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determining whether reasonable suspicion and probable cause exist, in the context
of a claimed violation of the Fourth Amendment to the United States Constitution,
should be reviewed de novo, even though these legal principles cannot be reduced
to simple rules; they involve “fluid concepts that take their substantive content
from the particular contexts in which the standards are being assessed.” (Ornelas
v. United States, supra, 517 U.S. at p. 696.) The high court concluded that
independent review would clarify the applicable legal principles and provide
guidance to law enforcement that would tend to assist officers in making a correct
determination in advance as to whether an invasion of privacy is justified. (Id., at
pp. 697-698.)
Similar reasoning supports de novo review in the present case. The
appearance-of-partiality standard is a “fluid concept” that takes its substance from
context and cannot be reduced to simple legal rules. Nevertheless, application of a
de novo standard of review will further the development of a uniform body of law
and clarify the applicable legal principles, guiding arbitrators in their decisions as
to which matters must be disclosed. Such guidance from appellate courts will
further the public policy of finality of arbitration awards by reducing the
likelihood that an award will be vacated because of an arbitrator‟s erroneous
failure to disclose.
Ossakow, citing cases involving motions to disqualify a prosecutor because
of a conflict of interest, insists that the standard of review should be whether there
has been an abuse of discretion. (See Haraguchi v. Superior Court (2008) 43
Cal.4th 706, 709 (Haraguchi); People v. Vasquez (2006) 39 Cal.4th 47, 56;
Hambarian v. Superior Court (2002) 27 Cal.4th 826, 834.) In ruling on such a
recusal motion, a trial court must determine whether the evidence demonstrates a
conflict of interest and whether the conflict is so severe as to warrant recusal.
(Hambarian at p. 833.) The trial court‟s ruling is reviewed under the abuse-of-
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discretion standard; factual findings are reviewed for substantial evidence,
conclusions of law are reviewed de novo, and “application of the law to the facts is
reversible only if arbitrary and capricious.” (Haraguchi, supra, 43 Cal.4th at
pp. 711-712.)
The reasons that justify a deferential standard of review in cases involving
recusal of a prosecuting attorney are not persuasive in the present context. First,
the statute governing disqualification of a prosecuting attorney, Penal Code
section 1424, “demands a showing of a real, not merely apparent, potential for
unfair treatment.” (People v. Vasquez, supra, 39 Cal.4th at p. 56.) The
application of that test appropriately is characterized as primarily factual. In
contrast, deciding whether an appearance of partiality exists requires application
of an objective, reasonable-person test. Second, as we noted in Haraguchi, a trial
court has “broad discretion to protect against procedural unfairness by ordering
pretrial recusals [of the district attorney].” (Haraguchi, supra, 43 Cal.4th at
p. 712.) In contrast, a trial court does not have broad discretion to vacate an
arbitration award. The court can vacate such an award only on the grounds
authorized by statute, and if the circumstances justifying vacation are found to
exist, the court “shall vacate the award.” (§ 1286.2, subd. (a).) A standard of
review that affords the trial court broad discretion would tend to undermine the
policy favoring the finality of arbitration. (See Advanced Micro Devices, Inc. v.
Intel Corp., supra, 9 Cal.4th at p. 376 & fn. 9 [because the arbitrator has
substantial discretion in determining the scope of his or her powers, the reviewing
court affords deference to the decision of the arbitrator but reviews de novo an
order of the trial court].) 10

10
Ossakow also cites cases addressing a trial court‟s decision to disqualify a
party‟s attorney in a civil case because of a conflict of interest — cases in which
(Footnote continued on next page)
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Finally, as we explained in Haraguchi, “[w]e review rulings on motions to
recuse [the district attorney] only for abuse of discretion precisely because trial
courts are in a better position than appellate courts to assess witness credibility,
make findings of fact, and evaluate the consequences of a potential conflict in light
of the entirety of a case, a case they inevitably will be more familiar with than the
appellate courts that may subsequently encounter the case in the context of a few
briefs, a few minutes of oral argument, and a cold and often limited record.”
(Haraguchi, supra, 43 Cal.4th at p. 713.) Consequently, we concluded that de
novo review of motions to recuse the district attorney would not increase the
accuracy of such determinations. (Ibid.) As noted above, a trial court reviewing
an arbitrator‟s decision does not enjoy the advantage the court has in ruling on a
motion to recuse a prosecutor. We conclude that employment of a de novo
standard of review for issues concerning arbitrator disclosure will assist in

(Footnote continued from previous page)
we have stated that the trial court‟s decision generally is reviewed for abuse of
discretion. (City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38
Cal.4th 839, 848; People ex rel. Dept. of Corporations v. SpeeDee Oil Change
Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) Because, as discussed above, the
trial court lacks discretion to vacate an arbitration award, these cases are
inapplicable here. Even if they did apply, they do not support Ossakow‟s
contention that the superior court‟s order should be reviewed under an abuse-of-
discretion standard. These cases concluded that because no material disputed
factual issues exist, the trial court‟s decision should be reviewed as a question of
law, that is, de novo. (City and County of San Francisco v. Cobra Solutions, Inc.,
supra, 38 Cal.4th at p. 848 [reviewing as a question of law the trial court‟s legal
conclusion that the city attorney‟s personal conflict of interest should be imputed
to the entire office]; People ex rel. Dept. of Corporations v. SpeeDee Oil Change
Systems, Inc., supra, 20 Cal.4th at p. 1144 [stating that when no material disputed
factual issues exist, the trial court‟s determination is reviewed as a question of law,
and observing that “[i]n any event, a disqualification motion involves concerns
that justify careful review of the trial court‟s exercise of discretion” ].)
17

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ensuring both consistency in the law and finality of arbitration awards, without
sacrificing accuracy in those determinations.11
B.
At issue in the present case is the requirement that an arbitrator disclose “all
matters that could cause a person aware of the facts to reasonably entertain a doubt
that the proposed neutral arbitrator would be able to be impartial.” (§ 1281.9,
subd. (a).) An arbitrator‟s duty to disclose arises under the same circumstances
that give rise to a judge‟s duty to recuse, that is, if “[f]or any reason . . . [a] person
aware of the facts might reasonably entertain a doubt that the judge would be able
to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).) As noted above, because the
standard for disclosure by a neutral arbitrator under section 1281.9, subdivision (a)
is the same as the standard for disqualification of a judge under section 170.1,
subdivision (a)(6)(A)(iii), case law applicable to judicial disqualification is
relevant to the present case.
“Impartiality” entails the “absence of bias or prejudice in favor of, or
against, particular parties or classes of parties, as well as maintenance of an open
mind.” (ABA Model Code Jud. Conduct (2007), Terminology, at p. 4.) In the
context of judicial recusal, “[p]otential bias and prejudice must clearly be
established by an objective standard.” (People v. Chatman (2006) 38 Cal.4th 344,

11
Amici curiae California Medical Association, California Dental
Association, and California Hospital Association argue that, although the ultimate
question — of whether a reasonable person with knowledge of particular facts
would doubt the arbitrator‟s ability to be impartial — should be reviewed de novo,
both the superior court and the appellate court should accord substantial deference
to the arbitrator’s decision by assuming the facts in the light most favorable to the
arbitrator‟s determination that he or she had no duty to disclose. Because the
relevant facts are not in dispute, we have no need to address this argument in the
present case.
18

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363; see In re Scott (2003) 29 Cal.4th 783, 817.) “Judges, like all human beings,
have widely varying experiences and backgrounds. Except perhaps in extreme
circumstances, those not directly related to the case or the parties do not disqualify
them.” (People v. Chatman, supra, 38 Cal.4th at p. 364.)
In interpreting a comparable provision of the federal law requiring recusal
of a judge when his or her “impartiality might reasonably be questioned” (28
U.S.C. § 455(a)), federal courts have stated that the appearance-of-partiality
“standard „must not be so broadly construed that it becomes, in effect,
presumptive, so that recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice.‟ ” (United States v. Holland (9th Cir.
2008) 519 F.3d 909, 913, quoting United States v. Cooley (10th Cir. 1993) 1 F.3d
985, 993.) “The „reasonable person‟ is not someone who is „hypersensitive or
unduly suspicious,‟ but rather is a „well-informed, thoughtful observer.‟ ” (United
States v. Holland, supra, 519 F.3d at p. 913, quoting In re Mason (7th Cir. 1990)
916 F.2d 384, 386.) “[T]he partisan litigant emotionally involved in the
controversy underlying the lawsuit is not the disinterested objective observer
whose doubts concerning the judge‟s impartiality provide the governing standard.”
(United Farm Workers, supra, 170 Cal.App.3d at p. 106, fn. 6, italics added;
accord, Leland Stanford Junior University v. Superior Court (1985) 173
Cal.App.3d 403, 408.)
“An impression of possible bias in the arbitration context means that one
could reasonably form a belief that an arbitrator was biased for or against a party
for a particular reason.” (Betz v. Pankow, supra, 31 Cal.App.4th at p. 1511,
italics added.) Ossakow contends, and the Court of Appeal held, that Judge
Gordon‟s public censure would cause a person to reasonably conclude that this
arbitrator might be biased against a female plaintiff in a medical malpractice case
involving cosmetic surgery. We disagree. Judge Gordon was publicly censured,
19

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in relevant part, because he “made sexually suggestive remarks to and asked
sexually explicit questions of female staff members” and mailed a sexually
suggestive postcard to a female staff member. (In re Gordon, supra, 13 Cal.4th at
pp. 473-474.) Additionally, Judge Gordon used “crude and demeaning names and
descriptions and an ethnic slur” in conversing with one staff member, and referred
to the “physical attributes” of a fellow jurist “in a demeaning manner.” (Id. at
p. 474.)12 His conduct resulted in “an overall courtroom environment where
discussion of sex and improper ethnic and racial comments were customary.” (In
re Gordon, at p. 474.) This type of conduct is clearly inappropriate; it is
disrespectful toward staff members and tends to create an offensive work
environment.
Nevertheless, nothing in the public censure would suggest to a reasonable
person that Judge Gordon could not be fair to female litigants, either generally or
in the context of an action such as the one now before us. His “actions were taken
in an ostensibly joking manner and there was no evidence of intent to cause
embarrassment or injury, or to coerce, to vent anger, or to inflict shame.” (In re
Gordon, supra, 13 Cal.4th at p. 474.) The conduct that was the subject of the
public censure occurred between April of 1990 and October of 1992, more than 15
years prior to the arbitration proceeding. None of the conduct or comments for
which Judge Gordon was censured involved litigants or occurred in the courtroom
while court was in session. (Ibid.) In determining the level of discipline
appropriate for a particular act of judicial misconduct, “[o]ur role is to determine,

12
The Court of Appeal stated that Judge Gordon was “censured for
disparaging women on account of their physical attributes,” but the public censure
mentions only a single instance in which Judge Gordon “referred to a fellow
jurist‟s physical attributes in a demeaning manner” (In re Gordon, supra, 13
Cal.4th at p. 474), without specifying the gender of this jurist.
20

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in the individual case, the action necessary to protect the public and the reputation
of the judiciary.” (Kloepfer v. Commission on Judicial Performance (1989) 49
Cal.3d 826, 867 (Kloepfer).) Had this court concluded that Judge Gordon was
unable to be fair to female litigants generally, public censure — which permitted
him to continue to sit as a judge — would have been an inadequate form of
discipline.13 (See Adams v. Commission on Judicial Performance (1995) 10
Cal.4th 866, 912 [noting that cases resulting in permanent removal of a judge from
office generally have involved a pattern of inappropriate conduct while the judge
is on the bench or otherwise performing judicial duties, or an abuse of judicial
powers and authority].)
Furthermore, implicit in a determination that public censure, rather than
permanent removal from office, will be sufficient to protect the public is the
expectation that the judge will respond to the censure by ceasing to engage in the
conduct that resulted in the disciplinary action. (See Kloepfer, supra, 49 Cal.3d at
p. 866 [judge removed from the bench when “[t]he record does not suggest that
[the judge] has, or will be able to, overcome this trait [lack of judicial
temperament] and that similar incidents will not recur”].) A person aware of all
the circumstances of Judge Gordon‟s public censure — including this court‟s
conclusion that there was no evidence suggesting that he acted with any intent to
harm or that any of his misconduct involved litigants before the court — could not
reasonably entertain a doubt concerning his ability to be fair to female litigants
even at the time his misconduct involving court personnel took place. Even less

13
Judge Gordon was publicly censured for “conduct prejudicial to the
administration of justice that brings the judicial office into disrepute.” (Cal.
Const., art. VI, § 18, subd. (d).) Such conduct can constitute grounds for removal.
(Ibid.)
21

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so could a reasonable person conclude that Judge Gordon was unaffected by the
discipline imposed and could not be fair to female litigants at the time of the
arbitration proceeding — at least in the absence of any evidence of gender bias on
his part in the intervening 10 years following the public censure.
More specifically, the circumstances underlying the public censure would
not suggest to a reasonable person that Judge Gordon‟s conduct and attitude
toward women would cause him to favor a male physician over a female patient in
a case in which the appearance of the patient who underwent cosmetic surgery
instead was worsened. Although the Court of Appeal characterized Judge
Gordon‟s conduct as “disparaging women on account of their physical attributes,”
our opinion mentions only one incident involving a woman‟s appearance, in which
he “referred to a fellow jurist‟s physical attributes in a demeaning manner.” (In re
Gordon, supra, 13 Cal.4th at p. 473.) Any number of speculative inferences might
be made about Judge Gordon‟s attitudes based upon that conduct. For example,
one might infer from that conduct that Judge Gordon valued a woman‟s physical
attributes over other attributes that are more relevant to the workplace. Even so,
that inference says nothing about what his attitude might be toward a woman who
is suing her physician for negligence in performing plastic surgery, much less
about whether Judge Gordon could put those attitudes aside and decide the case
fairly, based upon the evidence received. One might just as well speculate that a
man who values physical attractiveness in women might be more sympathetic
toward the female patient in such a situation. Such an inference would be no less
speculative than the inference that he would be more sympathetic toward the male
physician. Judge Gordon‟s public censure simply provides no reasonable basis for
a belief that he would be inclined to favor one party over the other in the present
proceedings.
22

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Unlike cases in which evidence of gender bias has required disqualification
of a judge, the subject matter of this arbitration was not such that the circumstance
of gender was material, or that gender stereotyping was likely to enter into the
decision made by the arbitrators. For example, in Catchpole v. Brannon (1995) 36
Cal.App.4th 237, the Court of Appeal reversed a judgment for the employer in a
sexual harassment case because of comments made by the judge that suggested
gender bias. The court noted that “judicial gender bias appears most likely to arise
in litigation in which gender is material, such as sexual harassment and
discrimination cases.” (Id., at p. 248, citing Judicial Council of Cal., Achieving
Equal Justice for Women and Men in the Courts: The Draft Rep. of the Judicial
Council Advisory Committee on Gender Bias in the Courts (1990) pp. 24-25.)
The appellate court noted in Catchpole that the trial judge‟s “conception of the
circumstances that may constitute sexual harassment [was] based on stereotyped
thinking about the nature and roles of women and myths and misconceptions about
the economic and social realities of women‟s lives. The average person on the
street might therefore justifiably doubt whether the trial in this case was
impartial.” (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 262.) Similarly, in
In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1498-1501, the appellate
court reversed a judgment in a marital dissolution case because the judge
employed language, in referring to the wife, that reflected gender bias (describing
her as a “girl”) and because his statement of grounds for decision reflected “an
obvious double standard based on stereotypical sex roles.” (Id., at p. 1500.)14

14
Had the subject of the arbitration in the present case involved, for example,
workplace sexual harassment, we might have come to a different conclusion
concerning Judge Gordon‟s obligation to disclose the public censure. Arbitration
of such a case might have required Judge Gordon to pass judgment on allegations
of misconduct similar to the acts he himself was found to have committed.
23

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Ossakow contends that in two respects the standard governing arbitrator
disclosure should be broader than the standard applicable to judicial recusal. First,
she argues that all doubts should be resolved in favor of disclosure. Second, she
argues that “[t]he „person‟ referenced in this disclosure requirement concerning
partiality is not necessarily an objective, reasonable person.” She appears to
suggest that the question be viewed from the party’s perspective, concluding that
“a person such as Ms. Ossakow might reasonably entertain a doubt as to Judge
Gordon‟s ability to be impartial in the present case.”
Clearly, some of the policies applicable in the context of judicial recusal
may differ from those applicable to arbitrator disclosure. A judge, unlike a
proposed neutral arbitrator, “has a duty to decide any proceeding in which he or
she is not disqualified.” (§ 170.) “ „Judicial responsibility does not require
shrinking every time an advocate asserts the objective and fair judge appears to be
biased. The duty of a judge to sit where not disqualified is equally as strong as the
duty not to sit when disqualified.‟ ” (People v. Carter (2005) 36 Cal.4th 1215,
1243, quoting United Farm Workers, supra, 170 Cal.App.3d at p. 100.) A
proposed neutral arbitrator has no comparable duty to serve.
The circumstance that the arbitrator‟s decision normally is not reviewable
for legal error may weigh in favor of broad disclosure to ensure a fair proceeding.
The United States Supreme Court has observed that “we should, if anything, be
even more scrupulous to safeguard the impartiality of arbitrators than judges, since
the former have completely free rein to decide the law as well as the facts and are
not subject to appellate review.” (Commonwealth Corp. v. Casualty Co. (1968)
393 U.S. 145, 149; see also id., at p. 152 (conc. opn. of White, J.) [arbitrators
should err on the side of disclosure].)
Despite some differences between the policies underlying arbitral
disclosure and those underlying judicial recusal, we find no reason to interpret the
24

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appearance-of-partiality rule more broadly in the context of arbitrator disclosure
than in the context of judicial recusal. The language of both applicable statutes is
virtually identical, and the judicial standard is explicitly made applicable to
arbitrators. (§ 1281.9, subd. (a)(1) [proposed neutral arbitrator must disclose
“[t]he existence of any ground specified in Section 170.1 for disqualification of a
judge”].) It may be appropriate for an arbitrator to resolve doubts in favor of
disclosure, but the arbitrator has no legal duty to do so.15
There are many reasons why a party might, reasonably or unreasonably,
prefer not to have a particular arbitrator hear his or her case — including the
arbitrator‟s prior experience, competence, and attitudes and viewpoints on a
variety of matters. The disclosure requirements, however, are intended only to
ensure the impartiality of the neutral arbitrator. (See Ethics Stds., com. to std. 7.)
They are not intended to mandate disclosure of all matters that a party might wish
to consider in deciding whether to oppose or accept the selection of an arbitrator.
(See, e.g., Luce, Forward, Hamilton & Scripps, LLP v. Koch, supra, 162
Cal.App.4th at pp. 734-735 [neutral arbitrator not legally required to disclose
service on board of professional organization with plaintiff‟s counsel, even if
defendants asserted they were “ „understandably uncomfortable‟ ” with that
relationship].) When, as here, an arbitration agreement provides the parties or the
parties‟ representatives the authority to jointly select a neutral arbitrator, they have

15
In contrast, a trial court judge must “disclose on the record information that
is reasonably relevant to the question of disqualification under Code of Civil
Procedure section 170.1, even if the judge believes there is no actual basis for
disqualification.” (Cal. Code Jud. Ethics, canon 3E(2).) The arbitrator has no
equivalent duty. As noted above, the arbitrator‟s duty to disclose extends to
matters that would require a judge to disqualify himself or herself. The arbitrator,
however, is not required to disclose all matters that a judge would be required to
disclose.
25

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the opportunity to take reasonable steps to satisfy themselves that the arbitrator
they agree upon is acceptable. The type of information here at issue — a decision
publicly censuring a judge, which has been published in the Official Reports of
this court — is readily discoverable.16
The broad interpretation of the duty to disclose urged by Ossakow could
undermine the finality of arbitration awards. Under the applicable California
statute, an arbitrator‟s failure to make a required disclosure requires vacation of
the award, without a showing of prejudice. (§ 1286.2, subd. (a)(6).) “If the
impression of possible bias rule is not to emasculate the policy of the law in favor
of the finality of arbitration, the impression must be a reasonable one.” (San Luis

16
After the arbitration, Ossakow was able to locate several articles on the
Internet referring to Judge Gordon‟s censure. Both Ossakow and her counsel filed
declarations in the superior court stating they were unaware of Judge Gordon‟s
censure until after the conclusion of the arbitration proceeding. The arbitrator
selected by Ossakow, who was jointly responsible under the agreement for the
selection of the neutral arbitrator, did not file a declaration.

Haworth does not contend in this court that Ossakow had actual or
constructive knowledge, prior to the arbitration, of Judge Gordon‟s public censure.
Consequently, we need not address the bearing such knowledge would have on a
motion to vacate an arbitration award based upon the arbitrator‟s failure to
disclose. (See Dornbirer v. Kaiser Foundation Health Plan, Inc. (2008) 166
Cal.App.4th 831, 842-843 [arbitrator‟s failure to make complete disclosure of all
information required did not provide grounds for vacating award, when
information that was disclosed put the party on notice of potential for bias and the
party readily could have requested further information prior to the arbitration;
Finnen v. Barlow (2006) 142 Cal.App.4th 185, 190-191 [arbitrator‟s failure to
fully disclose prior mediation of a matter involving a party to the arbitration did
not provide a ground for vacating award, when the party challenging the award
was a party in the prior mediation and recognized the arbitrator at the outset, but
did not object to the arbitrator‟s participation until after issuance of the award];
Remmey v. PaineWebber, Inc. (4th Cir. 1994) 32 F.3d 143, 148 [arbitrator‟s failure
to disclose information regarding professional discipline did not provide ground
for vacating award when the party readily could have obtained the information
prior to the arbitration].)
26

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Obispo Bay Properties, Inc. v. Pacific Gas & Elec. Co. (1972) 28 Cal.App.3d 556,
568.) An arbitrator must be able to determine at the outset, with reasonable
certainty, what information must be disclosed. It is reasonable to expect that a
neutral arbitrator will be able to identify, without much difficulty, the information
that must be disclosed regarding the particular relationships and interests that are
clearly defined in section 1281.9 and standard 7 of the Ethics Standards. It may
well be more difficult for the arbitrator to determine whether a disclosure must be
made under the general standard of appearance of partiality, because that standard,
although objective, is not clear-cut. Ossakow‟s proposed interpretation of the
standard, however, would place an unreasonable burden on the neutral arbitrator.
The arbitrator cannot reasonably be expected to identify and disclose all events in
the arbitrator‟s past, including those not connected to the parties, the facts, or the
issues in controversy, that conceivably might cause a party to prefer another
arbitrator. Such a broad interpretation of the appearance-of-partiality rule could
subject arbitration awards to after-the-fact attacks by losing parties searching for
potential disqualifying information only after an adverse decision has been made.
(Remmey v. Paine Webber, Inc., supra, 32 F.3d 143, 148 [“If this challenge were
sustained, nothing would stop future parties to arbitration from obtaining allegedly
disqualifying information, going through with the proceedings, and then coming
forward with the information only if disappointed by the decision”].) Such a result
would undermine the finality of arbitrations without contributing to the fairness of
arbitration proceedings.
27

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III.
The decision of the Court of Appeal is reversed.
GEORGE, C. J.

WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.

28

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DISSENTING OPINION BY WERDEGAR, J.
I respectfully dissent. Contrary to the majority and like both the Court of
Appeal and the trial court below, I believe the fact an arbitrator, while serving as a
superior court judge, was publicly censured by this court for making repeated,
overt and demeaning sexual comments in chambers to his female staff members
“could cause a person aware of the facts to reasonably entertain a doubt that the
proposed neutral arbitrator would be able to be impartial” (Code Civ. Proc.,
§ 1281.9, subd. (a)) in a gender-sensitive lawsuit over a female plaintiff‟s cosmetic
surgery. Under our arbitration law, the arbitrator therefore had an obligation to
disclose this fact upon his nomination as a neutral in this matter (ibid.), giving the
parties an opportunity to choose another neutral. His failure to do so is grounds
for vacating the award. (Id., § 1286.2, subd. (a)(6)(A).)
To vacate an award for the nondisclosure of a matter that was of public
record and could have been readily discovered beforehand is regrettable. Finality
of awards is of great importance to our system of contractual arbitration, a fact
reflected in the Legislature‟s having limited the grounds upon which a court may
vacate an award. (Code Civ. Proc., § 1286.2; see Moncharsh v. Heily & Blase
(1992) 3 Cal.4th 1, 27-28 [statutory grounds exclusive].) An equally vital
principle, however, is that with such limited judicial review the arbitration system
must have—and must be seen to have—sufficient integrity that parties can be
confident they will receive a fair hearing and an impartial decision from the
1

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arbitrator. The system‟s integrity, real and apparent, is crucially protected, among
other ways, by the disclosure requirements of Code of Civil Procedure section
1281.9. In condoning the failure of disclosure here, the majority sacrifices system
integrity on the altar of arbitral finality.
The majority opinion rests on two conclusions: that the facts of Judge
Gordon‟s censure do not suggest bias against female litigants generally (maj. opn.,
ante, at pp. 20-22), and that the present case is not one that would reasonably raise
particular doubts about his ability to be fair (id. at pp. 21-23). We need not decide
here whether all female litigants would have grounds to reasonably doubt Judge
Gordon‟s impartiality. My disagreement with the majority is on the second point,
i.e., whether one in possession of the facts of Judge Gordon‟s censure could
reasonably doubt his ability to be fair to the female plaintiff in this case. The
standard, it bears emphasizing, is not whether Judge Gordon in fact would be
biased, but whether his past conduct could cause a person aware of the facts to
reasonably entertain a doubt that he could be impartial. Although acknowledging
this standard, the majority in my view fails actually to apply it, instead opining
that “nothing in the public censure would suggest to a reasonable person that
Judge Gordon could not be fair to female litigants” (id. at p. 20, italics added), and
“the circumstances underlying the public censure would not suggest to a
reasonable person that Judge Gordon‟s conduct and attitude toward women would
cause him to favor a male physician over a female patient in a case in which the
appearance of the patient who underwent cosmetic surgery instead was worsened”
(id. at pp. 21-22, italics added).
In assessing whether one aware of the facts could reasonably entertain a
doubt about Judge Gordon‟s ability to arbitrate this dispute without bias, of
relevance is not only that he was publicly censured for “conduct prejudicial to the
administration of justice that brings the judicial office into disrepute” (Cal. Const.,
2

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art. VI, § 18, subd. (d)(2)), but the nature of the conduct underlying that censure.
The majority, drawing on this court‟s decision in In re Gordon (1996) 13 Cal.4th
472, minimizes the judge‟s sexually harassing conduct, observing that it did not
occur in the courtroom, the Commission on Judicial Performance (Commission)
made no finding he acted out of malice toward his staff members, and our opinion
censuring him referred to his “ „ostensibly joking manner.‟ ” (Maj. opn., ante, at
p. 20.) A better understanding of the conduct censured is gained from the full
decision and recommendation of the Commission, which this court adopted in our
censure decision. (In re Gordon, at p. 474.)1 Although, as the majority states, the
Commission‟s factual findings were not before the trial court and we do not
ordinarily take judicial notice of evidence not presented to the trial court (maj.
opn., ante, p. 4, fn. 2), we have the discretion to do so in unusual circumstances.
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3;

1
The Commission‟s Decision and Recommendation (Com.Jud.Perf., Inquiry
No. 119, Decision and Recommendation (Apr. 15, 1996); hereafter Decision) is
included in the record of our censure decision, of which we may, of course, take
judicial notice irrespective of whether the parties have requested that we do so
(Evid. Code, §§ 452, subd. (d), 459; see also Assem. Com. on Judiciary com.,
reprinted at 29B pt. 1 West‟s Ann. Evid. Code (1995 ed.) foll. § 452, p. 448), and
its contents were reported in the press (see Weinstein, Judge Should Be Censured,
Panel Says, L.A. Times (May 17, 1996) p. B-1). Had the parties been made aware
of the censure they could have obtained the facts from either source.

Technically, I would take notice of the Decision only to show what facts
the Commission found, rather than to show the truth of those findings, and would
take notice of the cited newspaper article to show only that the findings were
publicly reported. But as Judge Gordon did not contest the Commission‟s findings
in this court and we, on review of the record, found them justified (see In re
Gordon, supra, 13 Cal.4th at pp. 473-474), a person aware of the findings and this
procedural history could reasonably assume, or at least strongly suspect, their
truth.
3

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Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) In my view, the
circumstances here make notice of the Commission findings appropriate.2
The complainant in the Commission proceeding was a court reporter,
referred to in the Commission‟s Decision as Ms. A, who served as the reporter for
Judge Gordon from 1990 to 1992.3 In early 1992, Ms. A, who was married, made
it known that she was attempting to become pregnant. Apparently with that effort

2
First, the Commission‟s findings, although not presented to the superior
court, were known to the initial decision maker—Judge Gordon, as arbitrator—at
the time he was required to make disclosures under Code of Civil Procedure
section 1281.9. That is, at the time he made the decision not to disclose his
censure, he knew the Commission had made such findings, that he had not
disputed them in this court, and that we had found them supported by the evidence
taken before the Commission. The Commission‟s findings are thus not only
highly material to the decision ultimately under review—the arbitrator‟s failure to
disclose his public censure—they were actually known to the decision maker at
the time.

Second, we review the superior court‟s ruling on vacation of the award de
novo. (Maj. opn., ante, at p. 12.) In comparable circumstances, de novo review of
a superior court‟s ruling on a summary judgment motion, notice of materials
outside the appellate record has been held proper. (Shamsian v. Atlantic Richfield
Co. (2003) 107 Cal.App.4th 967, 975, fn. 5.)

Third, the notice taken here is supportive of the superior court‟s judgment
granting the petition to vacate the award. This case does not, therefore, present the
problem of a party seeking to go outside the appellate record in order to impeach a
superior court judgment with matters of which the lower court was unaware.

Finally, as mentioned above (ante, fn. 1), we need take notice only that the
Commission made the findings it did. Courts have typically approved notice that
certain findings had been made, even when notice of the findings‟ truth would not
be proper. (See Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749; Sosinsky v.
Grant (1992) 6 Cal.App.4th 1548, 1564-1565.) That the Commission made the
findings it did, and that those findings were publicly reported, are indisputable and
highly pertinent facts to which this court is not required to blind itself.
3
Ms. A was also the plaintiff in a civil action alleging sexual harassment and
wrongful termination, which was settled and dismissed prior to the Commission
proceeding. (Decision, supra, at p. 3.)
4

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in mind, Judge Gordon repeatedly referred to her as a “ „little copulator‟ ”; asked
her “ „Did you get any last night?‟ ”; and, when she visited her gynecologist, asked
after the condition of her vagina, using a vulgar slang term. While on vacation,
Judge Gordon mailed to Ms. A, addressed to her at the courthouse, a postcard with
a photograph of a female orangutan lying on her back, legs spread, with the
printed caption, “Let‟s face it I am lovable.” At about the same time, Judge
Gordon sent Ms. B, his court clerk, a postcard showing a bare-breasted woman on
a London street holding her nipples. In conversation with another court staffer,
Judge Gordon referred to a female judge as “ „fatso‟ ” and a “ „sow.‟ ” Judge
Gordon also used “crude and demeaning names and descriptions and an ethnic
slur” (In re Gordon, supra, 13 Cal.4th at p. 474) in referring to his female staff
members. (See also Decision, supra, at pp. 4-5.)
Addressed by a judge to his subordinate employees, such conduct, even if
cloaked in a “ „joking manner‟ ” (maj. opn., ante, at p. 20), is far from humorous
and seems very likely to cause embarrassment or emotional injury. The conduct,
moreover, took place in Judge Gordon‟s chambers, a workplace he headed. He
was either ignorant of his duty to maintain a respectful judicial work environment
or, if aware, unable to control his impulse to denigrate women in this environment.
In either case, a person aware of the facts could reasonably conclude not only that
Judge Gordon harbored disrespectful, disdainful and denigrating attitudes toward
women, but also that he was unwilling or unable to restrain himself from acting on
those attitudes in his relationships with his judicial staff and, accordingly, might
reasonably doubt whether Judge Gordon would be willing or able to put aside his
contempt for women and his single-minded focus on their sexuality when acting as
a neutral arbitrator in a gender-sensitive case. While none of the censured conduct
was directed at female litigants, as noted in our decision in In re Gordon, “the
result [of his behavior] was an overall courtroom environment where discussion of
5

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sex and improper ethnic and racial comments were customary.” (In re Gordon,
supra, 13 Cal.4th at p. 474.)
The majority reasons that plaintiff‟s medical negligence and battery claims
do not present the type of dispute in which gender stereotypes and biases are likely
to play a part, making doubts as to Judge Gordon‟s impartiality unreasonable even
though his censured conduct demonstrates gender bias. (Maj. opn., ante, at pp.
21-22.) I do not share the majority‟s blinkered view of how gender bias may
affect judicial decisionmaking.
Contrary to the majority‟s evident view, the effects of judicial bias are not
limited to actions alleging discrimination or sexual harassment. In re Marriage of
Iverson (1992) 11 Cal.App.4th 1495, a marital dissolution case, did not involve
any allegations of harassment or other discrimination but turned, rather, on
resolution of the validity of a prenuptial agreement. Yet the appellate court held
the trial judge‟s reference to the wife as a “ „lovely girl,‟ ” (id. at p. 1499), his
assumptions about male and female attitudes toward marriage, and his invocation
of the adage that a man would not “ „buy the cow when [he] get[s] the milk free‟ ”
(ibid.), showed the operation of disqualifying gender bias. (Id. at pp. 1499-1501;
see also id. at pp. 1504-1505 (conc. opn. of Moore, J.) [the judge‟s remarks,
although not establishing actual bias, required his disqualification because they
could have led a person aware of the facts to reasonably doubt his impartiality].)
In the present case, one could reasonably believe the subject matter could
bring into play biased attitudes toward women. Cosmetic surgery is most
commonly associated with women and is stereotypically associated with female
vanity and superficiality. One could reasonably believe that a man disrespectful
and disdainful of women, as Judge Gordon‟s behavior demonstrated he has been,
is likely to hold the stereotypical view that women generally are vain and
superficial and hence would be likely to discount a woman‟s claims that she
6

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received negligent and improper treatment during cosmetic surgery. Moreover, in
her battery count plaintiff alleged the surgeon had performed a procedure without
her consent, a claim depending on the premise she enjoyed full individual
autonomy to choose her treatment. A person aware of the facts could reasonably
suspect a man holding the demeaning attitudes toward women manifested by
Judge Gordon might be resistant to accepting a woman‟s full autonomy.
The majority asserts that even if Judge Gordon‟s censured conduct could be
seen as disparaging women on account of their physical appearance and as
showing he “valued a woman‟s physical attributes over other attributes that are
more relevant to the workplace,” one might just as well speculate “a man who
values physical attractiveness in women might be more sympathetic toward the
female patient” seeking to improve her appearance through cosmetic surgery.
(Maj. opn., ante, at p. 22.) But I doubt any person aware of the facts would see
evidence of a sympathetic attitude toward women in the embarrassing, belittling
and disrespectful conduct and comments the Commission found occurred. At any
rate, to draw the opposite conclusion—that is, to doubt the arbitrator would be fair
to the female plaintiff‟s claims of negligent cosmetic surgery—would at the least
be “reasonabl[e].” (Code Civ. Proc., § 1281.9, subd. (a).) That is all the statute
requires for mandatory disclosure.4
Most important, Judge Gordon‟s censured conduct demonstrated an
unwillingness or inability to control his impulse to harass and belittle women,

4
Similarly, the majority‟s reliance on the passage of time and the presumed
effect of public censure (maj. opn., ante, at p. 21) is misplaced in light of the
statutory standard. While one might reasonably hope that discipline for judicial
misbehavior will, together with the passage of time, produce reform, one might
equally well “reasonably entertain a doubt” (Code Civ. Proc., § 1281.9, subd. (a))
that personal biases and their impact on one‟s behavior and thinking are so readily
changed.
7

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even in a context—employment in judicial chambers—in which he must have
known such harassment could have serious consequences. A person aware of the
facts of Judge Gordon‟s censure could for this reason reasonably doubt whether he
could resist giving sway to his biased attitudes and render an impartial decision.
The Judicial Council of California has cited Judge Gordon‟s censured
conduct as an example of the gender-biased behavior California judges should
avoid. (Judicial Council of Cal., Guidelines for Judicial Officers: Avoiding the
Appearance of Bias (Aug. 1996) p. 15.) I agree with the Chief Justice, who, in his
letter introducing the Judicial Council guidelines, observed that “[t]he important
principles set forth in the booklet serve to reaffirm the Judiciary‟s continuing
commitment to ensure access and fairness for all participants in the California
judicial system.” (Id., introduction.) By its overly narrow application of Code of
Civil Procedure section 1281.9, the majority, regrettably, fails to reaffirm that
same commitment for participants in California‟s contractual arbitration system.
Like the superior court and Court of Appeal below, I would hold the neutral
arbitrator in the circumstances of this case was required, under Code of Civil
Procedure section 1281.9, to disclose his prior censure by this court. His failure to
do so was grounds for vacating the award under Code of Civil Procedure section
1286.2. Because the majority holds otherwise, I dissent.
WERDEGAR, J.
I CONCUR:
MORENO, J.
8

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Haworth v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 164 Cal.App.4th 930
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S165906
Date Filed: August 2, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Allan J. Goodman

__________________________________________________________________________________

Attorneys for Appellant:

Schmid & Voiles, Suzanne De Rosa, Susan H. Schmid and Denise H. Greer for Petitioners.

Cole Pedroza, Curtis A. Cole, Joshua C. Traver and Ashfaq G. Chowdhury for California Medical
Association, California Dental Association and California Hospital Association as Amici Curiae on behalf
of Petitioners.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Petitioners.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Bostwick & Associates, Bostwick Peterson & Mitchell, Jeffrey S. Mitchell; Dunn Koes, Brown Shenoi
Koes, Pamela E. Dunn, Mayo L. Makarczyk, Daniel J. Koes, Allan A. Shenoi and Michael R. Brown for
Real Party in Interest.

Sharon J. Arkin for United Policyholders and JustHealth as Amici Curiae on behalf of Real Party in
Interest.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Susan H. Schmid
Schmid & Voiles
333 South Hope Street, Eighth Floor
Los Angeles, CA 90071
(213) 473-8700

Fred J. Hiestand
1121 L Street, Suite 404
Sacramento, CA 95814
(916) 448-5100

Daniel J. Koes
Brown Shenoi Koes
175 South Lake Avenue, Suite 202
Pasadena, CA 91101
(626) 792-2300

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Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issues: (1) What is the scope of a neutral arbitrator's required disclosures under Code of Civil Procedure section 1281.9? (2) What is the proper standard of review of an order vacating an arbitration award based on an arbitrator's purported failure to disclose grounds for disqualification?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 08/02/2010	50 Cal. 4th 372, 235 P.3d 152, 112 Cal. Rptr. 3d 853	S165906	Review - Civil Original Proceeding	submitted/opinion due

Opinion Authors
Opinion	Chief Justice Ronald M. George
Dissent	Justice Kathryn M. Werdegar

Dockets
Aug 13 2008	Petition for review filed   The Beverly Hills Surgical Center, Inc., petitioners Suzanne De Rosa, attorney
Aug 13 2008	Record requested
Aug 26 2008	Received Court of Appeal record
Sep 17 2008	Petition for review granted (civil case)   The parties are directed to brief the following additional issue: What is the proper standard of review of an order vacating an arbitration award based on an arbitrator's purported failure to disclose grounds for disqualification? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Sep 23 2008	Letter sent to:   both parties, conflicts letter
Sep 23 2008	Record sent to Calendar Coordination Office   Petition for writ of mandate, appendix of supporting exhibits-2, request for judicial notice, return to petition for writ of mandate, opposition to request for judicial notice, reply to opposition to petition for writ of mandate, 7, previous petition for review (S160574), misc papers, orders, etc.
Sep 30 2008	Certification of interested entities or persons filed   Petitioners Randal D. Haworth, M.D., etal ~Attorney Suzanne DeRosa
Oct 3 2008	Certification of interested entities or persons filed   Pamela E. Dunn, Dunn Appellate Law, PC, Counsel for Real Party in Interest.
Oct 14 2008	Opening brief on the merits filed   Petitioners Randal D. Haworth, M.D. and The Beverly Hills Surgical Center, Inc. ~Attorney Suzanne De Rosa
Nov 13 2008	Received application to file Amicus Curiae Brief   California Medical Association, et al., amicus curiae by Joshua C. Traver, counsel
Nov 14 2008	Request for extension of time filed   60-days until January 16, 2009, to serve and file the answer brief on the merits Susan A. Ossakow, Real party in interest by Pamela E. Dunn, counsel
Nov 19 2008	Extension of time granted   On application of the Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the Real Party in Interest's answer brief on the merits is extended to and including January 16, 2009. Any party may file a single consolidated answer to all amicus curiae briefs within twenty (20) days after the last date that an application to file an amicus curiae brief may be filed under rule 8.520(f)(2).
Dec 1 2008	Amicus curiae brief filed   The application of California Medical Association, California Hospital Association and California Dental Association for permission to file an amicus curiae brief in support of petitioners is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within twenty (20) days after the last date that an application to file an amicus curiae brief may be filed under rule 8.520 (f)(2).
Jan 8 2009	Request for extension of time filed   60-days, to and including March 17, 2009, to serve and file the answer brief on the merits and the response to amicus curiae Susan A. Ossakow, Real Party in Interest by Mayo L. Makarczyk, counsel
Jan 12 2009	Extension of time granted   On application of the Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the Real Party in Interest's answer brief on the merits and the Real Party in Interest's response to amicus curiae are extended to and including March 17, 2009.
Jan 28 2009	Notice of substitution of counsel   Susan Ossakow, Real Party in Interest by Daniel J. Koes, counsel
Mar 13 2009	Request for extension of time filed   30-days, until April 16, 2009, to serve and file Real Party in Interest's answer brief on the merits and their response to Amicus Curiae briefs Susan Ossakow, Real Party in Interest by Daniel J. Koes, counsel
Mar 16 2009	Extension of time granted   On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits and response to amicus curiae brief is extended to and including April 16, 2009.
Mar 26 2009	Change of contact information filed for:   Attorney Daniel J. Koes, counsel for Real Party in Interst Susan Ossakow
Apr 9 2009	Request for extension of time filed   30-days, until May 18, 2009, to serve and file Real Party in Interest's answer brief on the merits and response to amicus curiae briefs. by Daniel J. Koes, counsel
Apr 15 2009	Extension of time granted   On application of the Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the Real Party in Interest's answer brief on the merits and their response to amicus curiae is extended to and including May 18, 2009.
May 19 2009	Answer brief on the merits filed Real Party in Interest: Ossakow, Susan AmyAttorney: Daniel J. Koes   per CRC 8.25b
May 28 2009	Request for extension of time filed   for petitioners to file the reply brief on the merits and response to amicus brief. (extension to July 28)
Jun 23 2009	Extension of time granted   On application of petitioners and good cause appearing, it is ordered that the time to serve and file petitioners' reply brief on the merits and response to amicus curiae briefs is hereby extended to and including July 28, 2009.
Jul 22 2009	Request for judicial notice filed (Grant or AA case) Petitioner: Haworth, Randal D.Attorney: Suzanne DeRosa Petitioner: Beverly Hills Surgical Center
Jul 22 2009	Reply brief filed (case fully briefed) Petitioner: Haworth, Randal D.Attorney: Suzanne DeRosa Petitioner: Beverly Hills Surgical Center   Randal Haworth M.D., Beverly Hills Surgical Center, petitioners Suzanne DeRosa, counsel
Aug 19 2009	Request for extension of time filed   10-days, until August 31, 2009, to serve and file an application to file an amicus curiae brief. United Policyholders, amicus curiae by Sharon J. Arkin, counsel
Aug 20 2009	Request for extension of time filed   21-days, until September 11, 2009, to serve and file an application to file an amicus curiae brief The Civil Justice Association of California by Fred J. Hiestand, counsel
Aug 25 2009	Extension of time granted   On application of United Policyholders and good cause appearing, it is ordered that the time to serve and file the application to file an amicus curiae brief is extended to and including August 31, 2009.
Aug 25 2009	Extension of time granted   On application of The Civil Justice Association of California and good cause appearing, it is ordered that the time to serve and file an application to file an amicus curiae brief in support of petitioners is extended to and including September 11, 2009.
Aug 28 2009	Request for extension of time filed   20-days, until September 11, 2009, to serve and file an application to file an amicus curiae brief. The Consumer Attorneys of California, amicus curiae by Steve Ingram, counsel
Sep 1 2009	Application to file amicus curiae brief filed   United Policyholders, amicus curiae by Sharon J. Arkin, counsel
Sep 2 2009	Extension of time granted   On application of The Consumer Attorneys of California and good cause appearing, it is ordered that the time to serve and file an application for permission to file an amicus curiae brief is extended to and including September 11, 2009.
Sep 3 2009	Permission to file amicus curiae brief granted   The application of United Policyholders and JustHealth for permission to file an amicus curiae brief in support of Real Party in Interest is hereby granted. An answer thereto may be served and filed by any party within twenty (20) days of the filing of the brief.
Sep 3 2009	Amicus curiae brief filed Amicus curiae: United PolicyholdersAttorney: Sharon J. Arkin Amicus curiae: JustHealthAttorney: Sharon J. Arkin   United Policyholders/JustHealth, amicus curiae by Sharon J. Arkin, counsel
Sep 11 2009	Request for extension of time filed   6 days, to and including September 17, 2009, to serve and file an application for permission to file an amicus curiae brief in support of Real Party in Interest Susan A. Ossakow Consumer Attorneys of California, amicus curiae by Steve Ingram, counsel
Sep 14 2009	Received:   Request for 2nd Extension of Time to file Amicus Curiae Brief in support of petitioners, from The Civil Justice Association of California, by Fred J. Hiestand, counsel.
Sep 15 2009	Extension of time granted   On application of Civil Justice Association of California and good cause appearing, it is ordered that the time to serve and file the application and amicus curiae brief in support of petitioners, is extended to and including September 15, 2009.
Sep 18 2009	Extension of time granted   On application of Consumer Attorneys of California and good cause appearing, it is ordered that the time to serve and file an application for permission to file an amicus curiae brief in support of Real Party in Interest Susan A. Ossakow, is extended to and including September 17, 2009.
Sep 15 2009	Application to file amicus curiae brief filed   The Civil Justice Association of California, Amicus curiae by Fred J. Hiestand, counsel
Sep 21 2009	Received:   letter from Randal D. Haworth, MD, FACS, etal, Petitioners Susan Schmid, Retained
Sep 22 2009	Amicus curiae brief filed Amicus curiae: Civil Justice Association of CaliforniaAttorney: Fred J. Hiestand
Sep 22 2009	Permission to file amicus curiae brief granted   The application of The Civil Justice Association of California for permissioin to file an amicus curiae brief in support of Petitioners is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Sep 23 2009	Response to amicus curiae brief filed Petitioner: Haworth, Randal D.Attorney: Susan H. Schmid Petitioner: Beverly Hills Surgical CenterAttorney: Susan H. Schmid   response to AC brief of United Policyholders and JustHealth
Oct 14 2009	Response to amicus curiae brief filed Real Party in Interest: Ossakow, Susan AmyAttorney: Daniel J. Koes Attorney: Jeffrey Scott Mitchell
Dec 17 2009	Notice of substitution of counsel   change of Law Firm for Susan Ossakow; Shenoi Koes LLP substituting for Brown Shenoi Koes LLP.
Mar 30 2010	Case ordered on calendar   to be argued on Thursday, May 6, 2010, at 9:00 a.m., in San Francisco
Apr 16 2010	Note: Mail returned and re-sent   Joshua Curt Traver old address 1: 200 S. Los Robles Avenue, Suite 678 new address 1: 200 S. Los Robles Avenue, Suite 300
Apr 16 2010	Application filed   Application to divide oral argument time, filed by Susan H. Schmid, counsel for petitioners, asking to share 10 minutes of time with amicus curiae Civil Justice Association of California
Apr 20 2010	Order filed   The request of petitioners to allocate to amicus curiae Civil Justice Association of California 10 minutes of petitioners' 30-minute allotted time for oral argument is granted.
Apr 28 2010	Request for judicial notice granted   Petitioners' request for judicial notice, filed on July 22, 2009, is granted.
Apr 28 2010	Letter sent to:   each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument."
Apr 28 2010	Stipulation filed   Stipulation by counsel Susan H. Schmid, that petitioners have no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 29 2010	Stipulation filed   Stipulation by counsel Daniel J. Koes, that the real party in interest has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 6 2010	Cause argued and submitted
Jul 30 2010	Notice of forthcoming opinion posted   To be filed on Monday, August 2, 2010.

Briefs
Oct 14 2008	Opening brief on the merits filed
Dec 1 2008	Amicus curiae brief filed
May 19 2009	Answer brief on the merits filed Real Party in Interest: Ossakow, Susan AmyAttorney: Daniel J. Koes
Jul 22 2009	Reply brief filed (case fully briefed) Petitioner: Haworth, Randal D.Attorney: Suzanne DeRosa Petitioner: Beverly Hills Surgical Center
Sep 3 2009	Amicus curiae brief filed Amicus curiae: United PolicyholdersAttorney: Sharon J. Arkin Amicus curiae: JustHealthAttorney: Sharon J. Arkin
Sep 22 2009	Amicus curiae brief filed Amicus curiae: Civil Justice Association of CaliforniaAttorney: Fred J. Hiestand
Sep 23 2009	Response to amicus curiae brief filed Petitioner: Haworth, Randal D.Attorney: Susan H. Schmid Petitioner: Beverly Hills Surgical CenterAttorney: Susan H. Schmid
Oct 14 2009	Response to amicus curiae brief filed Real Party in Interest: Ossakow, Susan AmyAttorney: Daniel J. Koes Attorney: Jeffrey Scott Mitchell

Brief Downloads
haworth1_petitioners_petition_for_review.pdf (4409956 bytes) - Petitioners' Petition for Review
haworth2_petitioners_opening_brief_on_the_merits.pdf (3312245 bytes) - Petitioners' Opening Brief on the Merits
haworth3_answer_brief_on_the_merits_filed_by_real_party_in_interest.pdf (6105491 bytes) - Answer Brief on the Merits filed by the Real Party in Interst
haworth4_petitioners_request_for_judicial_notice.pdf (2797980 bytes) - Petitioners' Request for Judicial Notice
haworth5_petitioners_reply_brief_on_the_merits-1.pdf (2627267 bytes) - Petioners' Reply Brief on the Merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Dec 1, 2010 Annotated by cborthwick

Facts: Dr. Randal Haworth (Haworth) performed cosmetic surgery on Susan Ossakow’s (Ossakow) lip in 2003. Ossakow alleged that Haworth committed battery and malpractice in performing this particular surgery. To resolve the conflict, Ossakow and Haworth entered into a binding arbitration agreement. Each party selected one arbitrator, who in turn appointed a third, neutral arbitrator. This neutral arbitrator, Norman Gordon (Gordon), was a retired judge of the Superior Court of Los Angeles County. In accordance with the California Arbitration Act codified in the CALIFORNIA CODE OF CIVIL PROCEDURE § 1281.9, Gordon disclosed potential bias in reporting that he had been “involved in legal proceedings with other members of defense counsel’s firm.” Once the three arbitrators were appointed, the two parties began the arbitration hearing. In a split opinion, the panel issued an award in favor of Haworth. Gordon wrote the opinion for the divided panel, which noted that Ossakow’s party did not meet the burden of proof for either establishing lack of consent for the particular surgery performed by Haworth or for establishing that the surgery fell below the requisite standard of care. A few months after the arbitration panel issued the award, Ossakow learned that Gordon was publicly censured during his time as a superior court judge. Gordon was censured for making disparaging comments about women and ethnicities to his courtroom staff. A judicial opinion was issued in this matter, which was available to the public, but Gordon did not report the public censure in his disclosure form. In re Gordon, 917 P.2d 627, 13 Cal. 4th 472 (1996). After Ossakow learned of Gordon’s public censure, Ossakow filed a petition with the Superior Court of Los Angeles County. Ossakow argued that Gordon should have disclosed this professional discipline because it showed that Gordon could potentially harbor bias against her as a female litigant. Procedural History: Haworth and Ossakow entered into a binding arbitration agreement to resolve Ossakow’s claim that Haworth committed battery and malpractice in performing her plastic surgery. The three arbitrators, one of whom was Gordon, granted the arbitration award to Haworth. The arbitrators granted Haworth the award for two main reasons. First, Ossakow did not show by a preponderance of evidence that she did not consent to the surgical procedure that Haworth performed on her. Second, Ossakow did not meet the burden of proof in establishing that this surgical procedure fell below the standard of care. Upon learning about Gordon’s public censure when he was a judge, Ossakow filed a petition in the Superior Court of Los Angeles. The superior court vacated the arbitration award in part due to Gordon’s failure to disclose the public censure. In reaching this conclusion, the Superior Court determined that a reasonable person could doubt Gordon’s impartiality from the events that gave rise to Gordon’s censure. In response, Haworth filed a petition for writ of mandamus in the Court of Appeal to reinstate the arbitration award, which the Court of Appeal denied. In the writ, the Court of Appeal declined to resolve the conflict in laws about the correct standard of review for an appellate court in determining the impartiality of a neutral arbitrator. The judges stated that regardless of whether it applied the de novo or substantial evidence standard of review, the court would uphold the superior court’s decision. The Court of Appeal reached its decision by concluding that a reasonable, average person on the streets would doubt Gordon’s ability to be impartial when presented with facts about Gordon’s past professional discipline. Consequently, Gordon should have disclosed his public censure to the parties pursuant to the California Arbitration Act. Notably, although the California Supreme Court did not address this issue, the appellate court rejected Haworth’s argument that Gordon’s public censure did not need to be disclosed because it was available in the public record. Issues: (1) What is the correct standard of review for an appellate court reviewing a trial court’s findings regarding the impartiality of a neutral arbitrator? (2) Does the general disclosure requirement under CAL. CODE CIV. PROC. § 1281.9(a) of facts that would make a reasonable person doubt a neutral arbitrator’s impartiality necessitate disclosure of the neutral arbitrator’s past professional discipline? Holdings: (1) An appellate court reviews de novo a trial court’s order in deciding whether disclosure of certain facts is mandated because a reasonable person would doubt the arbitrator’s impartiality from these facts. (2) The general disclosure requirement under CAL. CODE CIV. PROC. § 1281.9(a) did not necessitate that the neutral arbitrator disclose prior professional discipline because a reasonable person would not doubt the arbitrator’s appearance of impartiality from these particular facts. Analysis: The California Arbitration Act regulates private arbitration. CAL. CODE CIV. PROC. § 1280 et seq. After being selected as a possible arbitrator, this person has a general duty within ten days to “disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” Id. § 1281.9(d). There are specific matters listed under the California Arbitration Act, but the court concluded that Gordon’s public censure did not fall under any of these categories. Thus, the issue in this case was whether Gordon must disclose his public censure under the general requirement. An arbitrator must disclose his public censure if it “could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be impartial.” Id. § 1281.9(a). If the arbitrator knew of facts, which he would be required to disclose, and failed to disclose them, then the “trial court must vacate the arbitration award. Id. § 1281.9(d). Issue (1): The Supreme Court of California concluded that in analyzing the impartiality of a neutral arbitrator, the appellate court should review de novo the findings of a lower court. The court noted four primary reasons for reaching this decision. First, the Supreme Court of California concluded that an issue of impartiality is a mixed question of law and fact, which a higher court should review de novo. In this case, neither the material facts nor the applicable law is in dispute. Unlike the dissent, the majority decided to analyze the case using only the facts about Gordon’s public censure that were introduced in the trial court. The issue of whether Gordon should be required to disclose his public censure is a mixed question of law and fact, so de novo review is appropriate. Second, the court reasoned that judicial administration concerns weigh in favor of applying de novo review because the trial courts are not in a better position to analyze mixed questions of law and fact than the appellate courts. In fact, the three judges sitting on appellate courts have more combined expertise than one trial court judge. Third, the court stated that appellate courts should review the question of a neutral arbitrator’s impartiality de novo for the purpose of creating a consistent body of law. The question of impartiality is a “fluid concept” because the law is in context of the facts. Thus, in applying de novo review, appellate courts will be able to provide guidance to the trial courts by providing more consistent decisions. Lastly, the Supreme Court of California rejected Ossakow’s argument that the court should apply the highly deferential standard of review used in evaluating a prosecutor’s impartiality to cases evaluating a neutral arbitrator’s impartiality. Trial courts have broad discretion and are in a better position to analyze the facts in assessing a prosecutor’s impartiality, which is not true in analyzing an arbitrator’s impartiality. Issue (2): The Supreme Court of California decided that the general disclosure requirement under CAL. CODE CIV. PROC. § 1281.9(a) does not require disclosure of prior professional discipline. In determining which facts must be disclosed, the appellate court applies the objective test of whether a hypothetical, reasonable person would doubt the neutral arbitrator’s impartiality from the facts. In this case, the Supreme Court of California concluded that Gordon should have disclosed his public censure because a reasonable person could doubt his impartiality from this professional discipline. The California Supreme Court applied the body of law regarding the impartiality of judges in developing the standard for determining the impartiality of arbitrators. Consequently, the term “impartial” is narrowly construed, so the court must determine whether the arbitrator was biased “for or against a party for a particular reason.” In this case, Gordon did not need to disclose his public censure because a reasonable person would not believe that Gordon’s inappropriate conduct when he was a judge would cause him to be biased against a female patient bringing a suit against a male doctor for medical malpractice. The court concluded that unlike sexual harassment or sexual discrimination cases, the facts in this case do not present gender issues. Consequently, the general disclosure requirement under CAL. CODE CIV. PROC. § 1281.9(c) does not mandate disclosure of Gordon’s public censure. The court rejected Ossakow’s argument for a broader standard of disclosure for arbitrators than for judges. The court noted that the language of the statute concerning disclosure requirements for judges is identical to the language concerning disclosure requirements for arbitrators. Furthermore, the CALIFORNIA CODE OF CIVIL PROCEDURE explicitly applies the disclosure requirement for judges to the disclosure requirements for arbitrators. Additionally, the disclosure requirements are not intended to allow a party to discover all information about a potential arbitrator that they desire to know. Instead, the standard for disclosure of information for a neutral arbitrator is limited to what a reasonable person believes would give a neutral arbitrator the appearance of bias. Lastly, a broad standard of review would prevent the arbitration awards from being finalized, which is the general goal for arbitration hearings. Disposition: The Supreme Court of California reversed the decision of the Court of Appeal, which denied Haworth’s petition for a writ of mandamus to reinstate the original arbitration award. Dissent: The dissent concluded that a reasonable person aware of Gordon’s prior behavior could “reasonably entertain a doubt” that Gordon would be impartial. First, Gordon’s contested behavior was conducted in the workplace. Second, Gordon’s prior behavior may suggest that he had general, preconceived notions about women, which could cause a reasonable person to doubt Gordon’s impartiality in an arbitration hearing with a female litigant. Tags: standard of review, de novo review, arbitration, arbitration award, neutral arbitrator, impartiality, bias, disclosure, disclosure requirement, reasonable person Table of Key Authorities: 1. CAL. CODE CIV. PROC. § 1280 http://law.justia.com/california/codes/2009/ccp/1280-1280.2.html 2. CAL. CODE CIV. PROC. § § 1281 – 1281.96 http://law.justia.com/california/codes/2009/ccp/1281-1281.96.html 3. CAL. CODE CIV. PROC. § 1286.2(a)(6)(A) http://law.justia.com/california/codes/2009/ccp/1285-1287.6.html 4. CAL. CODE CIV. PROC. § 1294 http://law.justia.com/california/codes/2009/ccp/1294-1294.2.html 5. In re Gordon, 917 P.2d 627, 13 Cal. 4th 472 (1996). www.courtinfo.ca.gov/opinions/archive/S166221.PDF Annotation By: Claire Borthwick

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